Fisher v. York University [2011] OHRTD

What mitigating factors are taken into consideration when determining if a university failed to accommodate a student with a learning disability?

Facts:

This case took place at York University where Ms. Caroline Fisher was a visiting student from the University of New Mexico. She enrolled in advanced classes in French literature, Spanish grammar and English literature. Her home university had sent York a report detailing a list of accommodations for Ms. Fisher, who had a learning disability.

The University expeditiously provided Ms. Fisher with all accommodations recommended by her home university with one exception; the French department failed to submit her exam accommodation form until December. The delay, which the student did not report to York’s Learning Disability Program (LDP) in a timely manner, resulted in the student not being able to write a French exam.

At the beginning of the fall 2004 semester, Ms. Fisher made supplementary requests for accommodation, including the provision of subject-matter tutoring. The University’s general policy was not to provide such tutoring, which it found to be incompatible with the maintenance of the academic standards; at York, students were required to master course material on their own. The Assistant Vice President of Student Affairs finally provided her with funding for subject-matter tutoring in January 2005, but Ms. Fisher never used it.

Ms Fisher’s foreign language professors granted some, but not all, of the extra accommodations that Ms Fisher requested once in Toronto. The policy at York was to allow professors to disapprove any accommodation put forward by the LDP that, in their opinion, compromised academic standards. In this case, Ms. Fisher’s Spanish professor refused to allow the student use a word processor with spell and grammar check in her “Advanced Spanish Language and Grammar” class. Her French professor refused to allow Ms. Fisher to do her oral presentations in English or to study French translations of English texts in her French literature class. She did, however, allow Ms. Fisher to do her oral presentations in a private setting and granted her permission not to interact with other students in class.

Both professors talked to Ms. Fisher early in the fall semester when they noticed she was struggling with the subject matter of their classes. Her Spanish professor, who discovered that Ms. Fisher did not have the normal prerequisite courses and that she had not done a placement test, asked her if she was enrolled in the right class. The student claims that she became impatient with her in class and, one day, told her “spit out” her answer, thus humiliating her in front of her fellow students. The professor denied these charges, and the student failed to corroborate her claims. Similarly, her French professor talked to her about her concerns and asked her to do the French language placement test (modified to accommodate her disability) to ensure she was in the right class. Furthermore, the student claims that she, too, humiliated her in front of the class on the grounds of disability; one day, the student came to class when the class was writing an exam; she was asked to leave since she was not writing the exam with the class.

By mid-October, Ms. Fisher stopped attending her French and Spanish classes. She failed her Spanish exam, but claimed that this was due to unsatisfactory accommodation; there were distracting noises in the room she wrote the exam and she was not afforded the correct amount of time. She failed to write her French exam, because accommodations had not been put in place due to the French department’s failure to submit its exam accommodation form and her delay in reporting this delay to the LDP.

As a result, the LDP encouraged Ms. Fisher to withdraw from York and to try to recuperate her tuition, but she declined to do this. She continued to try to find funding for subject-matter tutors, but was faced with the reality that most such bursaries were for Canadian students. The University eventually found some funding in January 2005; but the student failed to use of it.

The University Ombudsman got involved in January 2005. She called a meeting attended by the dean, the French professor, the French department head, the director of the LDP and the vice-president Student affairs. The French department argued that the student “did not have the requisite language skills to succeed in the French course and that the best way to determine her level was the placement test. Only then could they accommodate her. The LDP recommended that Ms. Fisher be allowed to withdraw from the two language courses and permitted to take directed reading courses instead (this was deemed impossible because she did not qualify to take directed reading courses and she did not have the requisite language skills to succeed in such courses). In the end, the group decided to present Ms. Fisher with two options:

Withdraw from courses and petition for reimbursement of her tuition

Complete the courses with the accommodations currently in place

The student did not withdraw from the courses. Nor did she attend classes, submit assignments or write exams. She left York without paying her residence dues. She received B+ in her English Class.

She filed a complaint with the OHRTD claiming that the University discriminated against her on the ground of learning disability when it failed to provide her with subject-matter tutoring, a computer with spell and grammar check, the right to present in English and to work on English texts in translation. She claimed that the professors harassed her with demeaning comments and with imposing the language exam as a means of trying to get rid of her

Issues

Did her professors discriminate against the applicant on the basis of her disability?

Does the refusal of the respondent to provide subject-matter tutoring at its own expense to students with learning disabilities violate its obligation under the Code to make all reasonable efforts to accommodate the applicant up to the point of undue hardship?

Decisions

No

No

Reasoning:

The Tribunal found the refusal to allow certain accommodations (the right to use spell/grammar check in a grammar course and the right to study English books in translation in a French course), and the request to write the language proficiency exam, were motivated only by their obligation to maintain the integrity of academic standards. They had the right to question whether she was enrolled in the proper course (“If a professor cannot ask a student if she has enrolled in the proper course for fear of allegations of discrimination, no one would be in a position to ensure that a student is enrolled in the appropriate course for her skill level) and to ask her to leave the classroom when others were writing the exam (she herself required a quiet exam room without distraction as part of her accommodation). As for the general comments about degrading and humiliating comments, the tribunal found that the professors’ arguments were more credible the those of the applicant.

The tribunal found that York’s policy on not funding subject matter tutoring for students with learning disabilities was a) rationally connected to the maintenance of academic standards; b) was adopted in good faith; (c) that the respondent made all reasonable efforts to accommodate Ms. Fisher up to the point of undue hardship

Rational connection to the maintenance of academic standards?

York’s policy was that accommodation “must not alter the academic standards by which success in a course is determined”. In light of this principle, it held that subject-matter tutoring was distinct from skills-tutoring. Subject-matter tutoring was “incompatible with the maintenance of academic standards” (45) which require all students to master subject matter, on their own, both inside and outside the classroom. On the other hand, skills-tutoring, such as training in language and essay-writing skills, was compatible with the maintenance of academic standards, because they allowed students with learning disabilities to express more effectively the subject matter they had acquired on their own. Similarly, examination accommodations (extra time, separate space, computer access) do not alter academic standards.

Standard adopted in good faith?

The Tribunal assessed the “good faith” of the Respondent by looking at its comprehensive disability professionals, services and policies, all of which point to its “strong commitment to equal access to education for all students regardless of disability”.

Reasonable efforts to accommodate to the point of undue hardship?

Two components were assessed: Substantive and the Procedural. The University was found to have gone above and beyond its duty to accommodate on the substance level but was faulted for the procedural aspect of its accommodation process.

Substantive component

The Respondent provided all accommodations requested by the home University.

Subject-matter tutoring was notmentioned in the report sent by the home University

The respondents even went beyond what was recommended by the LDP. For example, Professor Pioffet allowed the applicant to work alone in class and to do her oral presentations in her office rather than in class. The Assistant VP Student Affairs eventually offered her funding for subject-matter tutoring

Procedural Component

The process was not perfect. There were two matters of concern: the delay in returning the exam accommodation form (December) and the delay in providing funding for subject-matter tutoring (December 2004). However, the Tribunal ruled that “the human rights standard is not one of perfection”. Moreover, the applicant failed to cooperate/participate in the accommodation process when she failed to inform the LDP of the delay, when she refused to write the French proficiency test and when she failed to use the funding for subject-matter tutoring.

The French Department did not return the exam accommodation form in a prompt and timely manner. However, the student failed to inform the LDP before December of this delay. This failure constitutes a mitigating factor :”It is not unduly onerous to require that the person with the disability advise the appropriate authority of any problems which arise in obtaining the recommended accommodation. Without this, it would be very difficult for a large bureaucracy to remedy situations which must inevitably rise” (52

Student Affairs did not offer funding for subject-matter tutoring in a prompt and timely manner. However, this delay is mitigated by the following factors:

The University’s policy not to funding this kind of tutoring

The Student’s lack of background and proficiency in French and Spanish was problematic - even with tutoring on subject matter, she did not have the prerequisite background to pass the course

The French professor’s perceptions that the student was struggling.

The student’s refusal to take the French proficiency test that had been modified to accommodate her disability. Asking her to write the test was reasonable because the respondents had legitimate concerns about her proficiency and wanted, in good faith, to help her enrol in a course appropriate to her skills level